WEST EDMONTON MALL PROPERTY INC v PROCTOR, 2020 ABQB 161
3.56: Right to counterclaim
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
9.2: Preparation of judgments and orders
The Plaintiffs sought an Injunction against a former tenant preventing her from defaming them. The Plaintiffs also sought to strike the Defendant’s pleadings under Rule 3.68, and sought Summary Judgment of a Statement of Claim and a Counterclaim brought by a non-party pursuant to Rule 7.3. The Plaintiffs also sought a declaration under Civil Practice Note 7 that the Defendant was a vexatious litigant.
The Defendant had added a non-party to the list of Defendants. Justice Mah found that, pursuant to Rule 3.56, a Counterclaim made by a non-party is a nullity. Further, the Court found that the Defendant was essentially seeking to relitigate something for which a final Court Order had already been issued, and that this amounted to an abuse of process pursuant to Rule 3.68(2)(d). In addition, the Court found that no cause of action underlay the Counterclaim for monetary damages of $35 million. For these reasons, the Court struck the Counterclaim.
In considering Rule 7.3, the Court found that the record was complete and allowed the Court to make the necessary findings of fact, and held that there was no genuine issue requiring a Trial. Mah J. granted the Plaintiff’s Application for Summary Judgment.
Lastly, the Court ruled that, with respect to the Order from this Decision the Defendant’s approval was not required pursuant to Rule 9.2(4)(c). The Court did not find it necessary to decide if the Defendant was a vexatious litigant as the Court had already struck the Defendant’s pleadings.View CanLII Details